By Nupur*, Madhurima Dhanuka**
The expanse of the legal-aid system’s mandate is such that almost 80 per cent of India’s over 1.25 billion population is eligible for free legal aid1 including women, children, disabled people, scheduled castes and scheduled tribes, those with mental illnesses, victims of mass disaster or ethnic violence, persons in custody, etc. Yet, since 1995, barely 15 million people have been provided legal services and advice by legal services institutions (LSI) established all across the country under the Legal Services Authorities Act, 1987 (the Act).
These LSIs are functional at the national (1), state (36), district (664) and sub-divisional (2,254) levels. LSIs have also been setup at the Supreme Court (1) and High Courts (36). LSIs are regulated by the Act and a number of rules, regulations, guidelines and standard operating procedures. Every LSI should have a ‘front office’, where legal services are provided. Quality is intended to be kept under review through monitoring and mentoring committees mandated to review performance and ensure documentation is accurate and regular.
LSIs appoint individuals to provide legal services. These individuals, collectively known as ‘legal aid providers’, include panel lawyers, retainer lawyers, jail visiting lawyers, remand lawyers and community and convicts trained as paralegal volunteers. ‘Legal services’ are not only restricted to representation in court cases, but also include spreading legal literacy, facilitating actualization of the entitlements of people under welfare laws and schemes, and the provision of advice and counselling.
Thus, not all lawyers represent at court, some provide advice and counselling at the front office, in legal services clinics and at legal awareness camps. Others are attached to remand courts or are tasked with visiting jails to provide legal services. Even with the Act providing for a realistic framework within which the legal aid system must function, its effective implementation remains a concern in most states.
The lack of optimal financial management and well-trained human resources, poor training of legal aid lawyers on their duties and responsibilities, inadequate performance monitoring and absence of mechanisms to gauge customer satisfaction hamper the functioning of LSIs to a great extent. A bigger concern has been ensuring the quality of services provided which is directly linked to the training, documenting, reporting and monitoring of legal aid providers. Monitoring and mentoring committees either don’t exist and if they do, their functioning is sub-par.
There is also no system at the district, state or national level to assess the demand for legal aid in these divisions. This would be a valuable metric for planning. State-wise data compares state performance against certain clearly defined parameters and is indicative of specific implementation capabilities, however, like all data based analysis it has its limitations. With just thirteen indicators—the least among the four pillars of police, prisons, judiciary and legal aid—uniformly available information about legal aid delivery proved the hardest to access.
The biggest challenge in the implementation of legal aid services is the uneven organizational practices in the delivery of legal services across districts and sub-divisions. As of 2018, there were 664 district legal services authorities (DLSAs) and 2,254 sub-divisional/taluka legal services committees established across districts. At the district level, these are chaired by the district and sessions judge. A judicial offi cer is assigned as member-secretary.
Tripura, West Bengal, Telangana, Chhattisgarh, Gujarat and Uttar Pradesh are states that are yet to establish DLSAs in all their judicial districts. Since 2012 there has been an emphasis on appointments for full-time secretaries to DLSAs. Against 664 DLSAs, the number of sanctioned posts of full-time secretaries to DLSAs stood at 603—a deficit of 61. The number of full-time secretaries in place was 525—a deficit of 139 to the number of DLSAs. As of 2019, smaller jurisdictions such as Arunachal Pradesh, Mizoram, Sikkim, Andaman and Nicobar Islands, Dadra and Nagar Haveli, Nagaland, Daman and Diu, Puducherry, Lakshadweep are yet to sanction full-time posts.
A possible reason for this may be a shortage of judicial officers. Some others, including Manipur (5/9) and Assam (22/33), have sanctioned fewer posts than there are districts. Every other state has sanctioned all posts, barring Madhya Pradesh (51/50) and Gujarat (32/31) that have sanctioned more posts than DLSAs. Sanctioned does not necessarily imply the posts have been filled.
While seventeen states and UTs have none, nine states show varying levels of vacancies: 9 per cent (Tamil Nadu), 13 per cent (Gujarat), 18 per cent (Telangana), 28 per cent (Uttar Pradesh), 31 per cent (Madhya Pradesh), 35 per cent (Chhattisgarh), 41 per cent (Jammu and Kashmir), 60 per cent (Tripura), 73 per cent (Meghalaya). Naturally, it can be said that 9 of 10 jurisdictions that have not sanctioned any posts for DLSA secretary have 100 per cent vacancy.
The number of legal aid providers varies a great deal across states, and no uniform or standardized policies exist for regulating the number of appointments. As of January 2019, there were 63,759 panel lawyers and 69,290 paralegal volunteers (PLVs) working with LSIs across the country. In a country as vast as India, PLVs provide an extended workforce, that is able to take legal services to remote locations and to the marginalized.
In 2010, the Chief Justice of India set up a National Committee for Para-Legal Training and Legal Aid Activities. Pursuant to its vision, NALSA framed its Para- Legal Volunteers Scheme (2009), placing emphasis on the need for trained intermediaries between the common man and LSIs. As per NALSA’s Para-Legal Volunteers Scheme every DLSA should ideally have 50 active PLVs. This amounts to at least 33,200 PLVs across 664 DLSAs.
However, nine states/UTs have appointed less than the required numbers—Jammu and Kashmir (559/1,100), Uttar Pradesh (3,099/3,550), Nagaland (165/550), Assam (826/1,650), Meghalaya (425/550), Mizoram (315/400), Dadra and Nagar Haveli (3/50), Daman and Diu (59/100) and Chandigarh (31/50). These nine states and UTs account for about 5,500 PLVs. The remaining twenty-seven states and UTs account for about 63,000 PLVs, though by the prescribed ideal of 50 PLVs per DLSA, they should have 25,200.
In other words, these twenty-seven states and UTs, as a set, have more than twice the number of PLVs than they should ideally have; and PLVs seem to be clustered in the rest of the country in numbers much higher than suggested. As of January 2019, twenty-two states/UTs have less than 10 PLVs per 100,000 population, with Dadra and Nagar Haveli having the least (0.9), followed closely by Uttar Pradesh (1.6). At the other end of the spectrum, Himachal Pradesh and Arunachal Pradesh have 84.3 and 77 PLVs per 100,000 population, respectively.
Paralegals are a vital link between the LSI and the community, as well as an important resource embedded within it. To be effective they need to be trained, monitored and fairly compensated for their services. The present uneven distribution of paralegals suggests the need to survey local populations and look at the demand for legal services to determine optimum numbers and a rational expenditure on this valuable community asset.
However, despite the crucial role that they can potentially play, there are several criticisms of the PLV scheme: beyond the qualification of a minimum education, it is uncertain how they are chosen and on what criteria they continue to be in service. They are not utilized in a planned and structured manner which has a bearing on the sustainability of legal services programmes; rarely used to assess the legal needs of the community to which they belong, their training is occasional, poor and patchy; sometimes more appointments are made than assignments given to PLVs and at other times there are fewer PLVs than the basic minimum requirement.
The presence of a large number of women panel lawyers and PLVs is essential for reaching out to a constituency that is often under-served and faces socio-cultural barriers when they try to come forward for legal assistance. Thirty-six per cent of PLVs (24,999 of total 69,290 PLVs) appointed are women. Six states/UTs— Daman and Diu (68 per cent), Dadra and Nagar Haveli (67 per cent), Lakshadweep (67 per cent), Goa (66 per cent), Kerala (66 per cent), Sikkim (52 per cent) had more than 50 per cent women PLVs, followed closely by Delhi (47 per cent). Bihar (22.3 per cent) and Uttar Pradesh (24.2 per cent) have the lowest percentage share of women PLVs.
Amongst panel lawyers, the gender breakdown is much less encouraging, only 18 per cent of them being women. Amongst the eighteen large and mid-sized states, Kerala ranks highest (40 per cent) followed by Karnataka (30 per cent) and Maharashtra at (27 per cent). Rajasthan, Odisha, and Uttar Pradesh all have less than 10 per cent. Amongst the seven small states Meghalaya ranks the highest (54 per cent) and Arunachal Pradesh lowest at (15 per cent).
Budget & Expenditure
Budget indicators allow us to assess the commitment of a state towards enabling access to legal aid. Funds for LSIs are sourced through both NALSA and states budgets. In some instances, costs ordered by courts in judicial proceedings are also deposited in the legal aid fund. At the state level, funds are usually expended for administrative expenses such as salaries of staff, office expenses and other infrastructural requirements. Some state governments also provide money for mediation. NALSA funds go toward legal services activities such as representation, Lok Adalats, counselling, legal advice and legal awareness.
In 2017–2018, six states and UTs including Jharkhand and Assam had no funds allocated from the state, whereas Nagaland, Arunachal Pradesh, Manipur, Tripura saw less than 20 per cent being provided by the state governments. Uttar Pradesh and Andhra Pradesh on the other hand saw more than 80 per cent coming from the state governments. In the same year, only five states utilized more than 90 per cent of NALSA allocated funds with the highest being Rajasthan (98 per cent) and Chhattisgarh (97 per cent). In these two states, at least 70 per cent of the total funds come from the state’s own coffers.
Daman and Diu, and Dadra and Nagar Haveli spent the least i.e. a mere 4 per cent of the funds allocated, followed closely by Lakshadweep (7 per cent). Apart from Meghalaya (7 per cent), Andaman and Nicobar Islands (8 per cent), Goa (23 per cent), Puducherry (30 per cent), Sikkim (31 per cent), Chandigarh (39 per cent), the rest spent more than 50 per cent of the allocated funds.
Although, NALSA has been actively taking steps for full and efficient utilization of funds such high percentages of underutilization across the board indicates either a lack of planning, or lack of adequate utilization of human resources to fulfil mandates. Either way, fund utilization remains a matter of concern. This can also have a domino effect. If states fail to utilize NALSA funds, then NALSA would have to consider reducing its overall budget, leading to reduction in funds received from the central government. That would inevitably inhibit the growth of legal services across the country.
LSIs conduct a broad spectrum of ever-increasing activities. For instance, the Act mandates state LSIs to give legal service to those eligible(almost 80 per cent of India’s population), to conduct Lok Adalats and to undertake preventive and strategic legal aid programmes and perform such other functions as assigned by the central authority. The scope is broad and allows states and UTs the flexibility to carry out a wide range of activities.
Every state must by law have a Permanent Lok Adalat which essentially deals with disputes relating to public utilities. In 2017–2018, a total of 124,459 cases were settled through 24,842 sittings of the PLAs, with the total value of settlement being about ₹247 crore. The highest number of cases were received in Haryana (37,413) and Madhya Pradesh (21,973). In terms of performance, PLAs of 5 State/UTs (Chandigarh, Delhi, Haryana, Himachal Pradesh and Maharashtra) settled more than 75 per cent of the cases received. However, states like Andhra Pradesh (18 per cent), Tripura (18 per cent), Goa (5 per cent) and Uttarakhand (2 per cent), could not dispose of even 20 per cent of the cases received.
This only adds to the pendency and reduces the value of this forum for the public. NALSA and SLSAs also organise Lok Adalats. With increasing pendency in courts, alternative dispute resolution mechanisms, are considered an effective means to resolve cases at the pre-litigation stage. The effi ciency with which Lok Adalats dispose of pre-litigation cases assumes importance in the larger canvas of judicial functioning. While the process itself is not free from criticism, it does offer some relief to an overburdened judicial system and litigants.
In this context, the percentage of prelitigation cases disposed of the total cases disposed and taken up is an important measure. In 2017–2018, countrywide Lok Adalats disposed 7.85 million cases. Of these, 5.92 million cases were disposed by National Lok Adalats (conducted by NALSA), 2.82 million of which (or, 48 per cent) were in the pre-litigation stage.
Another 1.93 million cases were disposed by Lok Adalats held by SLSAs, of which 0.98 million (or, 51 per cent) were in the pre-litigation stage. Taken together, among the 18 large and mid-sized states, the highest number of cases disposed at pre-litigation stages was in West Bengal. It disposed 1.45 million cases that were at the prelitigation stage, which amounts to 92 per cent of total cases disposed by these two kinds of Lok Adalats in the state.
It was followed by Bihar (81 per cent) and Maharashtra (69 per cent). The lowest in the set were Odisha (7 per cent) and Uttarakhand (12 per cent). As compared to National Lok Adalats, the share of pre-litigation cases in overall disposals is much lower among Lok Adalats held by SLSAs. West Bengal is the notable exception, registering 93 per cent. The other seventeen large and mid-sized states were all below 20 per cent, of which thirteen were below 10 per cent. Even when expanded to all states and UTs, thirty-two were below 20 per cent.
Given that nearly 1 billion Indians are eligible for free legal aid, the creation of necessary infrastructure is a fundamental pre-requisite in the fulfi lment of this mandate. An important measure of adequate infrastructure for reaching legal assistance into the public is the legal services clinic. This ‘shall work like a singlewindow facility for helping the disadvantaged people to solve their legal problems whenever needed’.
While the number and location of clinics is not set out NALSA (Legal Services Clinics) Regulations 2011 (the 2011 Regulations), requires they be established in areas where people face ‘geographical, social and other barriers’. In 2017, a total of 14,161 clinics existed across around 597,000 villages. On average, at these figures, one legal services clinic serves 42 villages. The 2011 Regulations require clinics to be set up in all villages or cluster of villages, subject to resources of the LSIs. This aspires to providing easily accessible legal assistance, therefore we have scored this using the logic of lower the number of villages serviced by a single clinic, the better.
There are only eleven states and UTs where a legal service clinic covers, on average, less than 10 villages. One state (Arunachal Pradesh) and three UTs (Delhi, Lakshadweep and Andaman and Nicobar Islands) don’t have a single legal service clinic. Among large and mid-sized states, the coverage is quite scattered. Kerala had one clinic for every 10 villages. Uttar Pradesh had one for every 1603 villages; Bihar one legal services clinic for 349 villages; and Odisha one for every 256 villages.
Among the seven small states, Sikkim has 1 clinic for 142 villages and Meghalaya 1 clinic for every 62. Goa and Tripura average 1 for 5 and 1 for 3 villages. Various regulations20 mandate the setting up of legal services clinics in jails subject to financial availability. There were 1062 jail legal services clinics (2017-18) in 1412 jails (as of December 2016). About 304,000 persons approached these clinics, of whom 71 per cent were provided legal assistance. Ideally each jail should have a legal services clinic of its own.
Where there are inmates from various districts in one jail there may be two clinics—one from each district, or there may be separate clinics for the male and female sections. Amongst the large states, Gujarat has the most jail legal services clinics—48 clinics in 27 jails: Punjab has 32 clinics in 26 jails; Chhattisgarh has 34 in 30 prisons. Kerala, Maharashtra and Uttar Pradesh have less than half the number of clinics required. Jharkhand, Odisha, Tamil Nadu and West Bengal do much better with clinics nearly matching the number of jails. The small states with much fewer jails do much better either exceeding or nearly reaching 1 clinic for 1 jail (with the exception of Sikkim).
While this speaks to the number of jail clinics, it does not speak to the quality of services provided. Across India, mandates and mechanisms to provide legal representation, awareness, aid and advice to local populations are in place to a larger or lesser extent. Nationally, finances are growing and there is a refreshing fl exibility in the activities that are permissible. The system is also deliberately kept under the aegis of the judiciary without executive interference on the plea that there is know-how as well as less opportunity for over-bureaucratization.
Clearly there is also a large under-served population spread across the country for whom doorstep legal services is a hugely empowering resource whether it is for simple advice given to a farmer or an appeal made for a convict or a woman suffering violence. The use of the legal aid machinery to spread legal awareness about the Constitution, rights and legal relationships between individual and the State, and individuals inter se is particularly desirable and valuable. Knowledge of the law provides a common language for conflict resolution and easy access to remedies is known to bring social peace, reduce contention and violence.
That said, the figures indicate that there are too many short falls and anomalies in the structure of legal services institutions to effectively deliver to the last mile. While there have been considerable improvements in terms of policy-level changes, guided primarily by a growing consciousness within NALSA to further its reach and range of activities, outcome-related efforts at the ground-level need to reflect this. Improved monitoring of quality legal assistance, evaluations of the needs of individuals and local communities, and their satisfaction with the services provided, would go a long way in realizing the true potential of the huge complex of legal services offered.
*Centre for Social Justice, Ahmedabad, **Commonwealth Human Rights Initiative. Source: India Justice Report 2019, Tata Trusts. Click HERE to download